The DH Benchmark: Spring 2008

Inside this Issue

Guilt by Association: An Employer’s Liability for Hiring an Employee with a Non-Compete Agreement

Former Employee Challenges Massachusetts Law Prohibiting Gender Discrimination Claims Against Businesses with Fewer than Six Employees

By Doulgas M. Marrano, Esq.

Privately-Held Companies and Section 404 of the Sarbanes-Oxley Act of 2002

By Travis M. Drouin, CPA, CIA,
Partner, Moody, Famiglietti & Andronico

The High Cost of Slacking Off : Ramifications for Breach of the Implied Covenant of Good Faith and Fair Dealing

A New Declaration of Independence — Doing It Right: The Revised Independent Contractor Law

By Cheryl A. Waterhouse, Esq.

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Design Professional White Paper: “Design Responsibility in Integrated Project Delivery: Looking Back and Moving Forward”

Whitepaper by By David Hatem, PC

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The Design and Construction Management Professional Reporter: January 2008

Inside this Issue

Massachusetts Court Rules Design Team Is Not Responsible for Contractor’s Failure to Perform Work

By John W. Dennehy, Esq.

Georgia Court Upholds Enforceability of Limitation of Liability Clauses in Favor of Design Professional

By Eric Howard, Esq.

Mississippi Appeals Court Rejects Exculpatory Clause Argument

United States Court of Federal Claims Finds No Breach of Implied Warranty

By Peter C. Lenart, Esq.

Texas Case Reviews Power of the Discovery Rule

By Samuel R. Pierce, Esq.

The Pendulum Begins to Swing Back: Recent Judicial Limitations on the Negligent Misrepresentation Exception to the Economic Loss and the Spearin Implied Warranty Doctrines

By David J. Hatem, PC

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The Accountant/Attorney Liability Reporter: October 2007

Inside this Issue

Immigration Impact On Employment Practices

First Circuit Finds No Attorney-Client Relationship Exists Between Counsel Retained By A Corporation And A Corporation’s Investors

Court Enforces Limitation Of Liability Clause In Accountant’s Engagement Letter

Court Holds Statute Of Limitation Begins To Run When Client Incurs Legal Fees To Defend Claims Arising From Accounting Firm
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The Design and Construction Management Professional Reporter: October 2007

Inside this Issue

The Existence Of A Fiduciary Duty Between Architect And Its Client Is A Question Of Fact

By Jordan S. Rattray, Esq.

Massachusetts Supreme Judicial Court Recognizes Joint Defense Privilege Under The Common Interest Doctrine

By Amanda Y. Sirk, Esq.

There Is No Common Law Right To Indemnity Against Design Professionals For Violations Of The ADA

By Leslie P. King, Esq.

California Appeals Court Rejects Public Owner’s Attempt To Disclaim Geotechnical Data

By David H. Corkum, Esq.

Pursuing Legal Defenses At The Outset Of Litigation Can Be The Difference Between Winning And Losing

By Damian R. LaPlaca, Esq.

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The DH Benchmark: Fall 2007

Inside this Issue

Whose Good Will Is It, Anyway?

®, TM and SM – What’s The Difference?

By Sarah K. Willey, Esq.

Business Trends In Executive Compensation And Benefits

By Jim Blue, CEO, The Bostonain Group

Documentation For A Venture Capital Investment In A Private Company

Instant Messaging Use Policies

By Damian R. LaPlaca, Esq.

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“Killer Contract Clauses”

A column by David H. Corkum in Tunnel Business Magazine

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Pursuing Legal Defenses at the Outset of Litigation Can Be the Difference Between Winning and Losing

A column by Damian LaPlaca

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The Design and Construction Management Professional Reporter: July 2007

Inside this Issue

New Hampshire Supreme Court Rejects Plaintiff’s Argument To Apply Both The “Special Relationship” And Negligent Misrepresentation Exception To The Economic Loss Doctrine

Limitation Of Liability Provisions May Not Be Used To Determine Good Faith Settlement Motions

New Mexico Court Rules That Excess Insurance Carrier Must Defend A Design Professional Even Though The Primary Insurer’s Policy Limits Had Not Yet Been Reached

Federal Claims Court Rules That Architect’s Imperfect Plans Did Not Breach Duty or Contract

Federal Claims Court Ruling Suggests That A Plaintiff’s Claims For Breach Of Contract Specifications And Differing Site Conditions May Be Combined

By Melissa S. Lee, Esq.

Immigration Impact On Employment Practices

By Gwen P. Weisberg, Esq.

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Legal Considerations For Design Professionals Involved In The Identification, Evaluation, And Mitigation Of Geo-Hazards

Presented by ASCE Metropolitan Section Geotechnical Group, New York City

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The Design and Construction Management Professional Reporter: April 2007

Inside this Issue

Adjudication Of Contractor’s Defective Specification Claim “Collapses” Into Its Parallel Differing Site Condition Claim

By David H. Corkum, Esq.

Court Of Appeals Rules Engineer Entitled To Award Of Attorneys’ Fees In Unsuccessful Suit By Contractor

Engineer May Have A Duty To A Surety, Despite An Exculpatory Clause Stating Otherwise

By Jordan S. Rattray, Esq.

Georgia Federal Court Grants Summary Judgment For Architect On Breach Of Contract And Negligence Claims

Armed Services Board Of Contract Appeals Substantially Rejects Contractor’s Multi-Million Dollar Claim For Damages
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“How to Procure a Tunneling Project: Part I, The Problem; Part II, The Solution”

Co-authored by David H. Corkum for Underground Infrastructure Management

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The Accountant/Attorney Liability Reporter: March 2007

Inside this Issue

Massachusetts Court Rules That Defendant May Seek Contribution From Plaintiff’s Counsel For Malpractice

Pension Protection Act of 2006 Alert: Potential Pitfalls, Penalties and Blacklisting for Appraisers – and Accountants, Attorneys and Fiduciaries?

Litigating In The World of Electronically Stored Information: An Overview of the Amended Federal Rules of Civil Procedure

First Circuit Upholds Decision Requiring Repayment of Corporate Indemnifi cation
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The Accountant/Attorney Liability Reporter: October 2006

Inside this Issue

Engagement Letter and Good Record Keeping Lead to Accountant Defense Verdict

Closing Attorney Not Liable to Seller as Escrow Agent in Absence of Contract With Seller of Property

By Doulgas M. Marrano, Esq.

Massachusetts Probate and Family Court Addresses Lawyer’s Simultaneous Representation of Family Members

Domestic Asset Protection Trusts (DAPT)
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The Design and Construction Management Professional Reporter: August 2006

Inside this Issue

Structural Engineer Not Liable For Injuries Caused By A Dangerous Construction Technique Where Contract Provisions Disclaim Liability And The Design Did Not Require Means And Methods Of Construction

By Daniel C. Poteet, Esq.

Ohio Appellate Court Distinguishes Spearin Doctrine And Reverses Award Of Delay Damages To Lead Contractor

Tolling Of The Statute Of Limitations For Professional Malpractice Actions In New York: The Continuous Representation Doctrine

Design Specifi cations Are A Matter Of Professional Judgment And Do Not Trigger An Action In Negligent Misrepresentation

By Douglas M. Marrano, Esq.

Court Of Appeals Of Georgia Re-Affirms The Viability Of The Negligent Misrepresentation Exception To The Economic Loss Rule
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The Accountant/Attorney Liability Reporter: June 2006

Inside this Issue

Trustees Who Breached Their Fiduciary Duties to a Charitable Trust were Removed from Office by the Court

The Massachusetts Supreme Judicial Court Addresses the Appropriate Standard of Care for Professionals

In Probate Actions Judges Enjoy Broad Discretion in Awarding Attorney’s Fees and Costs

Chapter 93A and Attorney Malpractice: More Than Mere Negligence

Estate Planning Reform and Client Inertia: Is the GRAT One Answer?
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The Design and Construction Management Professional Reporter: April 2006

Inside this Issue

Statutes of Repose in the Medical Malpractice Context Cannot Be Tolled Absent Specific Statutory Language Detailing an Exception, But Does the Same Rule Apply to Mass. Gen. Laws, ch. 260 § 2B?

Illinois Court Applies the Economic Loss Doctrine and Dismisses Claim by Homeowner Agreement

By Michelle R. Epstein, Esq.

Supreme Court of New Hampshire Upholds Statute of Repose

Architect Not Liable for Defects When No Evidence of Causation Exists

Subcontractor’s Professional Negligence Claim Against Design Professional Barred by Economic Loss Rule Where Contractor Has a Contractual Remedy for the Type of Harm Alleged
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The Accountant/Attorney Liability Reporter: March 2006

Inside this Issue

SEC Enforcement Action Triggers Director’s Duty to Repay Corporate Indemnification

Continuing Representation Doctrine Does Not Defeat Statute of Limitations Defense

Massachusetts Supreme Judicial Court Rejects “Actual Malice” Test for Assessing First Amendment Protection Afforded Lawyers’ Courtroom Statements

Constructive Trust Imposed on Real Estate Purchased by Attorney Acting in Breach of Fiduciary Duty
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January 2006 Employment Practices Newsletter

Click to download: January 2006 Employment Practices Newsletter

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The Design and Construction Management Professional Reporter: December 2005

Inside this Issue

No Matter How You Slice It, the Contract Language Reigns Supreme in Texas Even for a DSC

By David H. Corkum, Esq.

Massachusetts Court Upholds No Damages for Delay Clause in Municipal Contract

Court Holds that Contractor Was Not an Intended Third Party Beneficiary of a Contract Between the Owner and Architect

California Appeals Court Sets Aside Arbitration Award Due to Untimely Claim

Surety is Entitled to Maintain a Negligent Misrepresentation Claim Against Architect by Showing “Functional Equivalent” to Privity of Contract

Appellate Courts in Illinois and Minnesota Address Expert Testimony

North Carolina Court Interprets Use of Lay Witness in Lieu of Expert Testimony in Professional Negligence Claims

By Douglas M. Marrano, Esq.

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